2023 ONSC 5344, 2023 ONSC 5344

CITATION: 9383859 Canada Ltd. v. The Court of Appeal for Ontario, 2023 ONSC 5344 COURT FILE NO.: 500/23 DATE: 20230922 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: 9383859 Canada Ltd, Applicant AND: The Court of Appeal for Ontario and the Attorney General of Ontario, Respondents BEFORE: Schabas J. COUNSEL: Sandeep Singh, acting in person for the Applicant. Josh Hunter, counsel for the Ministry of the Attorney General HEARD: In writing ENDORSEMENT on Rule 2.1.01 This proceeding [1] On August 25, 2023, Sandeep Singh, on behalf of the applicant, filed an application for judicial review in this Court.

In hisemail accompanying the notice, Mr. Singh accurately advised the Court that the applicant sought to review a decision by the ExecutiveLegal Officer (“ELO”) of the Court of Appeal delisting the applicant’s appeal in 9383859 Canada Ltd. v.

Navartnam, Kubeskaram et al.,COA-22-CV-0453. [2] Following receipt of the notice of application, on August 29, 2023, the Court notified the applicant that it was “consideringmaking an order staying or dismissing this proceeding under Rule 2.1.01 of the Rules of Civil Procedure because it appears on its face tobe frivolous or vexatious or otherwise an abuse of the process of the court” and required the applicant to provide written submissions. [3] The applicant then provided a brief factum largely repeating what is contained in the notice of application for judicialreview.

The applicant also helpfully provided some additional information about the appeal, including correspondence relating to thedelisting of the appeal. The court also received a brief submission from the Ministry of the Attorney General for Ontario.

Background [4] On July 31, 2023, the parties to the appeal, including the appellant, received an email from a Records Coordinator at theCourt of Appeal advising that the appeal listed to be heard on September 14 was “delisted, as security for costs has not been paid.” Thatemail also referred to a motion that had been scheduled to be heard on August 14, 2023, but had to be rescheduled to September 18,2023, to allow Mr.

Singh to file materials and attend as he was not available “due to a family emergency.” An earlier email from theRecords Coordinator discloses that the motion set for August 14, 2023, was brought by the respondent to have the appeal dismissed. [5] Mr. Singh objected to his appeal, which had been perfected, being delisted. A counsel in the Office of the ELO of the Courtof Appeal then confirmed, in a letter dated August 16, 2023, that the appeal had been delisted because Mr. Singh had “not complied withJustice Miller’s order dated February 27, 2023, which required [him] to pay security for costs” by March 8, 2023.

Miller J.A.’s orderwas upheld by a panel of the Court of Appeal in July, 2023. The letter also confirmed that the respondent’s motion would proceed onSeptember 18, 2023. [6] The applicant, in the meantime, is now seeking leave to appeal the security for costs decision to the Supreme Court ofCanada. Analysis [7] The dismissal of a proceeding under Rule 2.1.01 is a blunt instrument, which should not be used lightly. It is reserved for the“clearest of cases, where the hallmarks of frivolous, vexatious or abusive litigation are plainly evident on the face of the pleading”: Khanv.

Krylov & Company LLP, 2017 ONCA 625 at para. 12. A “frivolous” proceeding is one “lacking a legal basis or legal merit; notserious; not reasonably purposeful”: Currie v. Halton Regional Police Services Board, (ON CA) at para. 14. [8] In the notice of application for judicial review and the applicant’s factum, the primary complaint of the applicant is that theELO delisted the appeal in the absence of a judge’s order.

As the factum states, the ELO “violated the Rules of Civil Procedure and deny[sic] the constitutional rights of the Applicant, by de-listing the Appeal of the Applicant, without an Order from a Honourable Judge.”

[9] I am satisfied that this complaint lacks a legal basis and legal merit, and is not reasonably purposeful, for several reasons. [10] First, decisions of the Court of Appeal are not subject to judicial review by the Divisional Court. The Court of Appeal is a“superior court of record”: Courts of Justice Act, RSO 1990, c. C.43, ss. 2(1). Any review of its conduct must be by way of appeal or amotion to reconsider, if available.

The Divisional Court, over which the Court of Appeal exercises appellate jurisdiction, has nojurisdiction to judicially review decisions of a “superior court of record”, but only those of an “inferior court”: Judicial ReviewProcedure Act, RSO 1990, c. J.1, s. 1. [11] Second, the applicant provides no authority in support of the proposition that the ELO does not have the power to “delist” andthat only a judge can do so. This is not surprising as the law goes the other way. As was observed in Valente v.

The Queen, (SCC), [1985] 2 SCR 673, at paras. 47-49, the “assignment of judges, sittings of the court, and court lists” is part of theadministration of the court controlled by judges, not the executive branch of government. Indeed, control over lists is seen as a basic or“minimum requirement” of the institutional aspect of judicial independence. [12] This control over lists by the judiciary is also found in s. 75(1) of the Courts of Justice Act.

Section s. 76 of the Courts ofJustice Act then provides that court staff “shall act at the direction of the chief justice of the court.” There is no rule of court requiring ajudge’s order to list or delist an appeal for hearing. Scheduling of matters is usually delegated to administrative staff who may list anddelist cases. If a litigant takes issue with the listing or delisting of their case by an administrator, their remedy is to seek direction from ajudge of the court in which the proceeding is taking place. The applicant has not done so.

The application to this court, therefore, is aninappropriate and collateral attack on proceedings that are ongoing in the Court of Appeal. [13] Third, the decision to delist in this case follows directly from an order of the Court of Appeal, as the applicant was ordered topost security for costs by March 8, 2023. Rule 56.05 of the Rules of Civil Procedure provides that, until security for costs is posted, theparty required to post those costs is not entitled to take any further step in the proceeding other than to appeal the order.

The applicantappealed the order unsuccessfully to a panel and has now sought leave to appeal to the Supreme Court of Canada. However, hisapplication for leave does not stay Miller J.A.’s order. Accordingly, as the applicant cannot proceed with the appeal because it has failedto comply with a court order, the matter was delisted. Viewed this way, the ELO’s action delisting the appeal was required in order tocomply with Justice Miller’s order. [14] Finally, the applicant, which is a corporation, alleges that the delisting of the appeal denies its constitutional rights. However,Mr.

Singh has not specified any constitutional right that has been infringed by the delisting, nor has he provided any particulars of howany right was infringed. [15] Pursuant to Rule 2.1.01, the application for judicial review is dismissed. Paul B, Schabas J. Date: September 22, 2023